Allen v. Shepard

March 28, 2009

TONY ALLEN, JR., PETITIONER,v.MARK SHEPARD, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner is represented in these proceedings by attorney Efren Williams. The second amended petition before the court challenges petitioner's 2001 conviction in the Sacramento County Superior Court for second degree murder (Cal. Penal Code § 187(a)) with a use of a firearm (Cal. Penal Code § 12022.53(b)-(d)). Respondent has filed an answer and petitioner has filed his traverse.

Now before the court are petitioner's motions for an evidentiary hearing (Doc. No. 48) and to expand the record (Doc. No. 51). Both motions are opposed by respondent. After setting forth the relevant background, below the court will address the latter motion first and then turn to the motion for an evidentiary hearing

BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn2 , the California Court of Appeal for the Third Appellate District provided the following factual summary:

The incident that gave rise to the charges occurred on January 30, 1999. At that time, defendant was married to two women.*fn3 He had married Deborah 10 or 12 years before. At some time, he began living in Denver, Colorado, and then married Lateshia in 1997. Although defendant lived in Denver most of the time, it appears that when he visited Sacramento, he expected to enjoy the benefits of his marriage to Deborah.

During 1998, neither wife enjoyed the benefits of defendant's company because he was incarcerated on a parole violation. During that time, Deborah formed a romantic relationship with the victim, David Bell. And she decided to dissolve her marriage to defendant.

Defendant was released from incarceration in December 1998, and sometime around the beginning of 1999, Deborah told him that she was proceeding with a dissolution action. Defendant replied that a dissolution was just a piece of paper and that she would still be his wife. Bell wanted Deborah to tell defendant about their relationship. However, Deborah did not want defendant to find them together.

On the day before the murder, Bell accompanied Deborah while she made the payment for her dissolution. The day of the murder, Bell and Deborah spent the morning together. The day before, defendant flew from Denver to Sacramento to pick up his Ford Expedition, which had been left in Sacramento for automotive work. While Deborah was out with Bell, her daughter called to advise that defendant was in town and had called. Bell wanted to find defendant to tell him that he and Deborah were together, but Deborah refused. Eventually, Bell left Deborah at her house and said he was going to Oakland and would see her later.

Some time after Bell left, defendant called and said he was coming to visit. Deborah told him she wanted him to take his possessions out of her house. Defendant visited Deborah that evening and stayed for several hours. Bell called and let Deborah know he was aware defendant was there. Bell wanted to talk to defendant, but Deborah refused. Bell told Deborah that she should tell defendant they were together or should stop seeing him, although his language was more colorful, and hung up. Moments later, Bell called back and defendant answered. After a short conversation, defendant hung up. He then left the house.

Bell drove to Deborah's house and parked on the street. After he got out of his car, he was shot. Most of the neighbors reported hearing three shots, and there were three expended shell casings found in front of Deborah's house. Bell was hit with two shots, one to the right side of his rib cage and one to the face. The shot to the face was the more serious wound. The bullet shattered teeth, passed through the tongue, and lodged in the neck, where it damaged the internal carotid artery.

Bell left a trail of blood while he went down the street seeking assistance. Bell received help from a neighbor who called 9-1-1. While they waited for emergency personnel to arrive, the operator asked what happened. Bell said he was shot by defendant, gave a brief description of the perpetrator and the location of the shooting, and said it was over a girl. He repeated these statements to the first police officer who arrived on the scene. Bell was taken to the hospital for emergency surgery. He survived for about two weeks until the attempted repairs to his carotid artery failed and he died.

After the shooting, defendant returned to Denver, where he obtained a driver's license and began living under the name of Antoine Holley. Denver police eventually learned that defendant was using the name Antoine Holley and began looking for him under that name. Defendant returned to Sacramento and was later arrested.

Initially, Deborah was cooperative with police investigators and made many statements implicating defendant in the murder. Deborah followed through on her dissolution action, and the marriage was dissolved on July 5, 2000. But as the proceedings progressed, Deborah and defendant reconciled. Deborah sought to avoid testifying and, obviously to that end, remarried defendant on July 19, 2001. Her testimony was replete with instances in which she testified contrary to her earlier statements, either denied or claimed not to remember her earlier statements, and asserted that the police investigators intimidated her and she was just telling them what they wanted to hear. Many of Deborah's earlier statements were admitted as prior inconsistent statements. (Evid. Code, § 1235.) (Lod. Doc. 4 (Opinion) at 2-4.)

Petitioner's judgment of conviction was affirmed by the California Court of Appeal for the Third Appellate District. (Id. at 27.) On April 14, 2004 his Petition for Review was summarily denied by the California Supreme Court. (Lod. Doc. 6.) Petitioner filed pro se habeas petitions in state court in which he raised claims relating only to the alleged bias of the trial judge and a claimed Brady violation. (Lod. Docs. 7, 9 & 11.) Those petitions were ...

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